This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Kevin C. Walsh (Catholic University of America School of Law) submitted the following paper for Workshop 1, on the general themes of the conference, which we are delighted to publish here:
I have three goals with this set of brief reflections for our first session on “Liberalism’s Limits: Religious Exemptions and Hate Speech.” One is to suggest the possibility of a smooth transition to a form of juridical post-liberalism in societies rooted historically in political liberalism. A second is to sketch out a few distinctions that will be helpful for us in analyzing particular questions of law and right related to religious exemptions and hate speech. The third is to offer a couple of suggestions about the potential practical utility of attending to these broader theoretical considerations. Those suggestions relate to the question of how to understand the role of dignitary harm in law, a matter that sometimes arises at the intersection of religious exemptions and hate speech.
I. Overcoming liberalism through transformation from within the juridical domain
When things are coming apart, it is natural to consider what endures. We are thinking about the limits of political liberalism because it looks like liberal polities are coming apart. We are interested in how to understand and to navigate whatever change it is that we are going through. In considering the limits of liberalism in connection with religious exemptions and hate speech, I focus first on the possibility of overcoming liberalism through transformation from within the juridical domain. Are there ways that faithful (in the sense of loyal, oath-bound) participants in a liberal society’s legal justice system not only may operate entirely without reliance on foundational premises of political liberalism, but also may actively reframe those elements of the legal justice system in its practical operation that push toward reliance on such premises?
To answer this, we first need a working understanding of political liberalism. This way we can know what we are asking lawyers and judges to do without. For this, I will draw on Leo Strauss, who wrote: “If we may call liberalism that political doctrine which regards as the fundamental political fact the rights as distinguished from the duties of man, and which identifies the function of the state with the protection or the safeguarding of those rights, we must say that the founder of liberalism was Hobbes.” [1]
From this formulation, we can isolate two Fs of political liberalism. First is the Fundamental Political Fact of individual rights as distinguished from duties, with rights taking priority over duties. Second is the Function of the State as the protecting or safeguarding of each individual’s individual rights. [2]
With these two features in mind, it would seem what is necessary to overcome these elements of political liberalism within the juridical domain would be twofold: first, to invert the priority of individual rights to duties; second, to redescribe the function of the state in terms of ensuring to each his due rather than securing to each his rights. This is straightforwardly accomplished within the juridical domain by reference to the virtue of justice. [3]
Against the first F of political liberalism (fundamental political fact of individual rights prior to duties), we may contrast the fundamental juridical fact of something being due to a person in justice. This fundamental juridical fact is linked together with the priority of the duty to render to each his due even before that thing due is asserted as a right within a formal juridical setting. That is, every assertion of right within the juridical domain presupposes a prior ordering and allocation in which things either belong to, or are due to be rendered to, persons. Matters end up within the legal justice system when this ordering has been disturbed in some way that can be judicially rectified.
Against the second F of political liberalism (function of state to preserve and protect individual rights), we can contrast the judicial duty to order the rendering to each his due. We have already noted that a matter of justice arises after there has been some sort of prior ordering or allocation establishing what is due; to administer justice is not to accomplish a new ordering that makes something newly due. The judicial duty to order the rendering to each his due presupposes this prior ordering. This judicial duty is called into action after there has been a disturbance with or deprivation of one’s due. Once called into action, it becomes the duty of the judge to order relations among the parties such that one deprived of his due is put back into possession of it.
The extent to which this framing truly contrasts with the second F of political liberalism depends on the nature of what is to be rendered as due. If those things due are equivalent to the individual rights of political liberalism, then to this extent the function of the state from the juridical perspective arising out of consideration of the virtue of justice is indistinguishable from the function of the state as conceived within political liberalism. As we shall see, though, individual rights should be conceived differently from the perspectives of political liberalism and of the virtue of justice.
II. Three distinctions regarding rights, law, and right
I begin by presenting three distinctions at a very general level, proceeding from most to least familiar. I offer some suggestions about the potential practical utility of these distinctions for one area of the law below, but stick to more abstract exposition here.
A first distinction is between subjective rights and objective rights. Subjective rights are rights that inhere in an individual subject. These are understood as socially extended powers of the individual. Objective rights are claims to certain objects or things as one’s own. These belong to a person by way of actual possession or dominion, or entitlement to possession or dominion.
A second distinction is between lex and ius, understood here as two types of human positive law. The best way to understand this distinction among types of human positive law is a matter of some dispute. I will use the account set forth recently by Paolo Sandro. [4] According to Sandro, lex is “[positive] law as the mode of expression of political authority.” [5] This encompasses familiar kinds of law like statutes and regulations. In contrast, ius is “positive law that does not have its source in the will of the sovereign, but rather ‘as something given [by the traditional mores, i.e., Roman customary norms], waiting to be discovered and declared’ (jus-dicere).” [6] This encompasses familiar kinds of law like judicially formulated rules of tort and contract law.
A third distinction is between two meanings of ius. First is ius as “the overall body of law generally, including and subsuming lex, but transcending it, and containing general principles of jurisprudence and legal justice.” [7] This is the usage of ius in familiar phrases like corpus juris, ius gentium, ius commune, and ius civile. Second is ius as the object of the act of justice. More specifically, following Javier Hervada, ius in this sense is “that precise thing regarding which the virtue of justice establishes the obligation to give it to another person because it is constituted as his.” [8] This is ius as “the just thing.”
Why all three distinctions? To avoid equivocation, confusion, and other such unpleasantness. It is not uncommon to encounter thinking that is too loose about ius. Sometimes this is about the ius/lex typology; other times about the body of law/object of justice distinction. With the foregoing distinctions in mind, my claims are that participants in the legal justice system should adopt the perspective of virtue jurisprudence over rights-based liberalism by: (1) reframing all claims of subjective right as claims of objective right; and (2) evaluating all claims of objective right by reference to the precise just thing owed as the object of justice.
Because ought implies can, I hope we are able to discuss whether both of these moves can be universally implemented (and if not, why not). To make all this less abstract and to consider the potential usefulness of these distinctions, though, let us now turn briefly to the matter of dignitary harm.
III. The just thing and dignitary harm at the intersection of religious exemptions and hate speech
Religious exemptions and hate speech sometimes run into each other in culture-war disputes arising out of the sexual revolution. The point of contact is dignitary harm. Examples of such disputes include those over goods or services for same-sex weddings, pronoun usage in classrooms, and access to bathrooms based on one’s gender identity rather than biological sex. In these settings, the harms alleged are a mixture of material and dignitary. A material harm is something like the inability to access goods or services or facilities, or a loss of money. A dignitary harm is a feeling of moral stigma or inferiority or exclusion.
Whatever the setting in which a claim of dignitary harm is advanced, the principal moves along the lines suggested above are to:
(1) reject subjective conceptions of dignitary harm, insisting instead on traditional adjacent conceptions that are more objective in nature, such as the right not to be reputationally harmed by false statements of fact, or the right not to be subjected to “extreme and outrageous conduct” that causes emotional distress; and
(2) focus on the precise thing that is being sought, such as the particular flower arrangement, the particular cake, the particular collection of photos and videos, or the particular pronoun or name to use or not to use.
These two moves just set the stage for a legal analysis that attends to the particular features of a jurisdiction’s on-point law.
Within the United States, these moves can be doctrinally supported through well-established principles both of tort law and of First Amendment freedom of speech law. Within the area of religious exemptions more specifically, some scholars have attempted to include dignitary harm among the third-party harms that (they say) should count against granting a religious exemption from anti-discrimination laws. Turning judicial focus away from subjective claims of right and toward particular conduct and speech that would be forced or forbidden helps to highlight the poor fit of dignitary harm claims with more deeply rooted aspects of American law.
Whether similar jurisprudential moves have similarly promising doctrinal hooks in the law of other jurisdictions raises questions for those more familiar than I am with the comparable law of other jurisdictions. If I am right about the broader jurisprudential points, though, we all can be looking for just the same kind of thing.
[1] Leo Strauss, Natural Right and History 181 (1953). I am indebted to Edmund Waldstein, O. Cist., Rights and the Common Good, for identifying this formulation as a starting point for analyzing liberalism.
[2] From the identification of Hobbes as the “founder of liberalism,” we can also take notice of two more Fs of political liberalism, if we wish. One is the Formation of the body politic in a social contract. The other is Fear as the fundamental motivating factor for the formation of the body politic and its government. These Fs are beyond the scope of this short reflection, but might be helpful to keep in mind when thinking about political liberalism more broadly.
[3] The working conception of justice that I am operating with is that spelled out by Javier Hervada, who grounds it historically in the traditions of the Roman jurists as integrated in the thought of St. Thomas Aquinas. See generally Javier Hervada, Critical Introduction to Natural Right (Librairie Wilson & Lafleur inc. 2d English ed. 2020, supervised by Carlos José Erráruiz and Petar Popović, with linguistic consultant Dawn Eden Goldstein, trans. from Spanish by Mindy Emmons for the first English edition, supervised by Ernest Caparros).
[4] See Paolo Sandro, The Making of Constitutional Democracy: From Creation to Application of Law (Hart 2021) 50-55.
[5] Sandro at 51.
[6] Sandro at 51, quoting PG Stein, ‘The Roman Jurists’ Conception of Law,’ in A Padovani and PG Stein (eds), The Jurists’ Philosophy of Law from Rome to the Seventeenth Century, A Treatise of Legal Philosophy and General Jurisprudence, vol 7 (Dordrecht, Springer, 2007) 6.
[7] Adrian Vermeule, Common Good Constitutionalism (Polity 2022) 4.
[8] Hervada, Critical Introduction to Natural Right, at 21.